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Patrick H., Lawyer

Category: Australia Law

Satisfied Customers: 5361

Experience: Dip Law LPAB - Sydney based lawyer

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Good afternoon, Brief Background: I have a 16 year old

Customer Question

Good afternoon,Brief Background:I have a 16 year old daughter and I am divorced from her mother. My daughter is subject to a Family Law Order.The order states that my daughter lives with her mother and spends time with me every alternate Fri – Monday morning when she is returned to school and again the following Wednesday – Friday morning when she is again returned to school.My daughter is mildly autistic and has a mild intellectual disability as well.The relationship between her mother and myself is far from amicable with her mother being a Respondent on numerous IVO’s with both myself and my current wife as the AFM’s. In fact her mother is currently to appear in court for contravention on an IVO on which my current wife is the AFM.On Tuesday, which is her mother’s time, my daughter is involved in the School’s annual performance/concert for which she has been practicing for many months.I work in law enforcement in Victoria.My ex wife has made numerous unfounded complaints against me to my employer, virtually from the day we separated. As such, prior to the current Family Law Act Order I was legally recording our conversation. The Family Law Act Order Prohibits me recording any conversations between myself and my ex-wife on the grounds that such behaviors may expose my children to Family Violence.The Family Law Order states that we are to communicate via email except in an emergency.The situation:- My daughter really wants to go perform in her school Concert/Performance.- It is not my time with my daughter.- Her mother refuses to attend the concert or take my daughter because she fears we will set her up for a contravention of the IVO.- Her mother has said that I can take her if I Call her on the phone and asks her “Nicely”,- As per above, I will not converse with her without the conversation being recorded so that I can disprove any scurrilous accusations she may make against me.- Her mother has sent me emails stating that it is up to me to take my daughter to her concert.- In the past 3 years, we have picked my daughter up from school on the Tuesday of her concernt, taken her to the concert and dropped her back off at school the next day. There hasn’t been any issues and these times have been arranged via email.The situation is causing my daughter great stress and angst. She doesn’t have many interests, but dancing is one and this is a great opportunity for her to enjoy herself.Question:- Is my daughter within her right to tell her mother that she wants to come back with me so she can attend the concert, or am I in my right to ask her to wait outside the school grounds and then pick her up and take her to the concert as her mother has told me I have to take her to it (Quite rightly, my daughter’s school don’t want to allow me to collect my daughter from school on her mother’s time without written authorisation from her mother, as they won’t facilitate a contravention of an order);- Is my daughter within her right to tell the school that she wants me to collect her from school that day without needing her mother’s written authorisation?Thank you for your timeRegardsRobert

Strictly speaking, your daughter telling/asking you do something in contravention of the orders is not a proper basis for breaching the orders, and the court may take a dim view of you influencing your daughter to breach the order.

That said, the orders don't appear to prevent your daughter from asking her mother, but ultimately it is up to the mother to agree to any variation in the orders (though even she cannot do so if that would contravene a IVO).

If you will not talk to the mother on the phone and she is pressing you to call her before she will agree, I can only suggest you write to her asking nicely and setting out why it is in the best interests of your child that she be able to attend, and asking her to confirm with the school that you can pick her up. If she fails to comply then this may prove useful evidence if you have to again apply to the family court for a variation on the current custody arrangements, since it will make it clear that she is not prioritising the interests of your daughter. It may be worthwhile mentioning this to her if you think such a threat would assist in obtaining her cooperation.

If she refuses then legally you are stuck. Whilst you can take legal action to get new orders, and could in theory apply for urgent orders, in practice it would be very doubtful you could get suitable court orders in place in time to fix this problem, though knew orders addressing functions like this could be obtained for future occasions.

Whilst you could simply breach the orders if you can convince the school to let you take her, you would technically be in breach of the orders, and whilst I suspect if the matter were raised with the court, the court would be sympathetic, there are no guarantees.

Thank you for the reply Patrick. Before I rate, am I able to request a supplementary question to expand on the original.If so, I would just like to clarify, that as the court order states that my ex and I are to communicate via email except for emergencies, that If I were to call her (Which I wont) that, as with IVO's, I would be contravening the order if I called even though she has asked that I call in order to facilitate the extra time with my daughter.Many thanks.